United States District Court, D. Delaware
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICE PLUMBERS AND PIPEFITTERS OF THE UNITED STATES AND CANADA, LOCAL 74, Plaintiff,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 313, Defendant.
REPORT AND RECOMMENDATION
SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this action for breach of contract and violation of Section 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186, are the following motions: (1) plaintiff United Association of Journeymen and Apprentice Plumbers and Pipefitters of the United States and Canada, Local 74's ("Local 74" or "plaintiff') motion for summary judgment (D.I. 27); (2) defendant International Brotherhood of Electrical Workers, Local 313's ("Local 313" or "defendant") cross-motion for summary judgment (D.I. 36); (3) Local 74's motion to strike Local 313's December 4, 2013 letter to the court (D.I. 41); and (4) Local 313's cross motion for leave to supplement the record on summary judgment (D.I. 42). For the following reasons, I recommend that the court grant-in-part Local 74's motion for summary judgment, deny Local 313's cross-motion for summary judgment, grant-in-part Local 74's motion to strike, and grant-in-part Local 313's cross motion for leave to supplement the record.
Cushman and Wakefield ("C& W"), a commercial real estate and property management company, maintains and operates two commercial data centers located in Newark, Delaware ("CDC 1") and Wilmington, Delaware ("CDC 2"). (D.I. 1 at ¶¶ 7, 10; D.I. 6 at ¶¶ 7, 10) Since CDC 1 and CDC 2 opened in 2004, C& W and its predecessors have employed approximately fifty members of unincorporated labor associations Local 74 and Local 313 as building engineers and maintenance personnel. (D.I. 1 at ¶¶ 3, 4, 11; D.I. 6 at ¶¶ 3, 4, 11) Two thirds of the maintenance services force is comprised of electricians from Local 313, and the remaining one third is comprised of plumbers from Local 74. (D.I. 39, Ex. 1 at 3)
Since 2004, Local 313 has served as the exclusive bargaining representative for a single bargaining unit comprised of the employees from Local 74 and Local 313 at CDC 1 and CDC 2. (D.I. 37, Ex. Cat 23:11-24:15) In 2004, Local 313 entered into a collective bargaining agreement with EMCOR, Inc., the maintenance subcontractor. (D.I. 37, Ex.Cat 24:16-26:11) EMCOR was replaced by PM Realty in 2006, and PM Realty continued to recognize Local 313 as the exclusive bargaining representative under the terms of the collective bargaining agreement between EMCOR and Local 313.
When the 2004 collective bargaining agreement expired, Local 313 and PM Realty entered into a new collective bargaining agreement covering the period from December 2008 through November 2011 (the "CBA"). (D.I. 1 at ¶ 12; D.I. 6 at ¶ 12; D.I. 29, Ex. B) Although Local 74 was not a signatory to the CBA, the CBA contained a clause recognizing the employment of members of Local 74 and incorporating the wage, benefit, and dues scales of Local 74 into the CBA. (D.I. 1 at ¶ 13; D.I. 6 at ¶ 13; D.I. 29, Ex. B) Pursuant to the terms of the CBA, C& W deducted a working dues percentage from the paychecks of employees from both Local 313 and Local 74 on a monthly basis and forwarded the deducted amounts to Local 313. (D.I. 1 at ¶ 18; D.I. 6 at ¶ 18; D.I. 31, Ex. D at 46:7-47:24) The employees of Local 74 each signed a written authorization card permitting C& W to deduct dues and fees from their pay "in satisfaction of working dues, " and requiring that those deductions be remitted to Local 74. (D.I. 1 at ¶ 25; D.I. 33, Ex.Fat ¶¶ 3-4)
Until June 2011, Local 313 retained the amounts due for its own members and forwarded the amounts due for Local 74 members to the GEM Group, the administrator of the Local 74 benefit funds. (D.I. 1 at ¶¶ 20-21; D.I. 6 at ¶¶ 20-21; D.I. 31, Ex. D at 49:21-50:3) Beginning in June 2011, Local 313 business manager Douglas Drummond instituted a new practice, based on his interpretation of the agency shop clause found at § 10(e) of the CBA,  in which Local 313 kept a portion of Local 74 dues equal to the amount of its own dues instead of forwarding the entire amount withheld to Local 74. (D.I. 1 at ¶ 22; D.I. 31, Ex. D at 50:8-54:1; Ex. E) As a result, Local 74 began receiving the difference between 5.25% and 3.8%, as opposed to the full 5.25%. (D.I. 1 at ¶ 24; D.I. 6 at ¶ 24) As of July 11, 2013, the amount of dues retained by Local 313 from the wages of members of Local 74 totaled $106, 180.06. (D.I. 33, Ex.F at ¶ 8 and Ex. 3)
During the term of the CBA, PM Realty was replaced as the maintenance contractor by C&W, which continued the terms of PM Realty's CBA until a new agreement could be negotiated. (D.I. 37, Ex. Cat 26:10-27:17) Negotiations on a new collective bargaining agreement between C& W and Local 313 began in October 2011, and Local 74 again did not participate in the negotiations. (D.I. 37, Ex. Cat 38:17-22) Local 313 and C&W reached agreement on all terms except the language of the union security clause, found at § 7. (D.I. 37, Ex. Bat 3) The disputed language reads as follows:
All present bargaining unit employees who are members of the Union on the effective date of this agreement or on the date of execution of this agreement, whichever is the latter, shall remain members of the Union in good standing as a condition of employment. All bargaining unit employees who are not members of the Union and all such employees who are hired hereafter shall become and remain members in good standing of the Union as a condition of employment on and after the 31st day following the beginning of their employment, or on and after the 31st day following the effective date of this agreement or the date of execution of this agreement, whichever is the latter. For purposes of this provision, membership in good standing in the Plumbers and Pipefitters Local Union 74 shall be considered as compliance with this provision.
(D.I. 37, Ex. A at § 7(1); see also D.I. 29, Ex.Bat § 7(1)) (emphasis added). Specifically, Local 313 sought to remove the language indicating that membership in Local 74 is equivalent to membership in Local 313. (D.I. 37, Ex.Bat 4) C&W insisted that the language be retained, and the parties reached an impasse on the issue. ( Id. )
Local 313 filed unfair labor practice charges with the National Labor Relations Board ("NLRB") in response to C&W's refusal to enter into a collective bargaining agreement with Local 313 that would include terms compelling Local 74 to pay dues to Local 313 as a condition of employment. (D.I. 37, Ex. B) Local 313 prevailed against C&W before the NLRB, which concluded that the dispute did not involve a mandatory subject for bargaining upon which the employer could insist to impasse. ( Id. at 6) ("[C&W's] insistence that [Local 74's] membership be considered membership for the purposes of the union security clause flies in the face of the statutory scheme that permits union security clauses in the first place.").
III. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). Pursuant to Rule 56(c)(1), a party asserting that a fact is genuinely disputed must support its contention either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir.1989). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence in support of the nonmoving party may not be sufficient to deny a motion for summary judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the nonmoving party on the issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ...